May 19, 2008

Michael O. Leavitt

Secretary of the U.S. Department of Health and Human Services

U.S. Department of Health and Human Services

Office of Global Health Affairs

Room 639H

200 Independence Avenue, SW

Washington, DC 20201

Subject: Comments on Office of Global Health Affairs; Regulation on the Organizational Integrity of Entities Implementing Leadership Act Programs and Activities, Notice of Proposed Rulemaking, 73 Fed. Reg. 20,900, April 17, 2008

Dear Secretary Leavitt,

We strongly support the U.S. government’s goals of preventing the spread of HIV and ending trafficking in persons worldwide. We are concerned, however, that U.S. anti-HIV/AIDS and anti-trafficking efforts are severely undermined by the proposed regulation’s restrictions on the range of interventions that can be used to protect the lives and health of people in prostitutionⁱ, and of trafficked persons, the very groups intended as beneficiaries of U.S. efforts.

Based on our experience advocating for the health and human rights of women and men, we are deeply concerned that the proposed regulation precludes recipients of U.S. funds from using the best practices at their disposal to prevent HIV/AIDS among these populations and to promote the fundamental human rights of all persons.

People in prostitutionⁱ, are among the most marginalized persons in any society. The organizations with the most effective anti-AIDS and anti-trafficking strategies build their efforts on a sophisticated understanding of the social and personal dynamics underlying these issues, and start by building trust and credibility among the populations in question. They recognize that it is both possible and often necessary to provide social, legal and health services to people in prostitutionⁱ without judging them, and without adopting positions on issues such as prostitutionⁱ. They work to secure the legal rights of people in prostitutionⁱ to be free from violence and discrimination and to empower them to demand universal condom use, thereby preventing the further spread of HIV infection within and outside this sector. Some groups also work to prevent people from being trafficked into the sex sector and to assist trafficking victims. Requiring organizations to adopt anti-prostitutionⁱ policies makes it extremely difficult, if not impossible, to establish the trust necessary to provide services to these hard-to-reach groups.

We oppose this regulation for three key reasons:

1. The regulation runs contrary to best practices in public health and undermines efforts to stem the spread of HIV and human trafficking. While the regulation does not spell out which activities are “inconsistent with a policy opposing prostitution” and therefore prohibited, members of Congress and others have asserted that recipients of U.S. HIV/AIDS funds may not participate in or be associated with some of the interventions cited by UNAIDS and the World Bank as “best-practice” model. These include peer-education efforts to slow the spread of HIV within the commercial sex sector, which use strategies intended to earn trust, reduce social isolation, increase participation in public life, and confront stigma and discrimination. These initiatives focus on promoting the fundamental human rights and health of persons working in prostitutionⁱ, but do not equal the promotion of prostitutionⁱ. Yet, the regulation appears to prohibit organizations receiving funds from participating in or associating with these valuable programs, such as SANGRAM and VAMP in Maharashtra and the Sonagachi Project in Calcutta, India.

2. The broad language of the regulation increases the risk that organizations will self-censor or curtail effective programs for fear of being seen as supporting or promoting prostitutionⁱ. The proposed regulation requires recipients to maintain “objective integrity and independence from any affiliated organization that engages in activities inconsistent with a policy opposing prostitutionⁱ and sex trafficking,” 45 C.F.R. § 88.2(a), but never says what those forbidden activities are. The regulation also gives HHS the power to scrutinize the speech of any entity “affiliated” with a recipient of U.S. HIV/AIDS funds but does not place limits on what organizations may be considered “affiliates.”

As a result, there is widespread confusion in the field about what activities are permissible. Groups have refrained from providing something as simple as English language training classes for Cambodians working in the commercial sex sector for fear such programs would be interpreted as “promoting prostitutionⁱ.” Such a loss of services has dire consequences for women in need of services; in Phnom Penh alone, the rapid growth of job opportunities in government, in non-governmental organizations, and in the tourist industry makes English language skills a valuable commodity and a means of accessing opportunities outside the sex sector. In Jamaica, health workers working with people in prostitutionⁱ have expressed concern that these restrictions curtail their ability to support the efforts of people working in the commercial sex sector to protect their rights.

3. The proposed regulation requiring non-governmental organizations to establish a physically, legally and financially separate “affiliate organization” to work with commercial sex workers is a drain on limited resources, ineffective and stands in the way of providing necessary services. Effective service provision comes with integrated services, enabling individuals to access the support they need in the most practical way possible. The mandate to create separate organizations is simply infeasible as a matter of service provision and will force groups to waste precious funds on duplicating NGO registrations, hiring separate staff, opening separate offices with separate equipment. All of these requirements further stretch the capabilities of non-governmental organizations for no valid reason.

Policies such as these that exacerbate stigma and discrimination against already marginalized groups provide no real service. Any anti-prostitutionⁱ declaration by organizations working in the sex sector has the potential to judge and alienate the very people these organizations seek to assist, making it difficult or impossible to provide services or assistance to those at risk. Public statements against prostitutionⁱ can also fuel the public opposition against men and women in prostitutionⁱ, further driving them underground and away from lifesaving services. Purported morality should not stand in the way of meeting the needs of human beings.

Sincerely,

American Civil Liberties Union

American Jewish World Service

Bay Area Sex Worker Advocacy Network

Catholics for Choice

Center for Health and Gender Equity (CHANGE)

Center for Reproductive Rights

Center for Women Policy Studies

Feminist Majority

Global AIDS Alliance

HealthGAP

HIV Medicine Association

International Center for Research on Women

International Planned Parenthood Federation/Western Hemisphere Region

International Women’s Health Coalition

National Council of Jewish Women

National Women’s Law Center

Planned Parenthood Federation of America

Sex Workers Action New York

Sex Workers Outreach Project - New York City

Sex Workers Outreach Project – USA

Sex Workers Outreach Project East

Sexuality Information and Education Council of the U.S.

United Methodist Church, General Board of Church and Society